Changes in Ohio Law Expand Local Government Emergency Borrowing Authority For Removal of
Dead and Dying Ash Trees

Rebecca C. Princehorn
Bricker & Eckler LLP
May 2006

The emerald ash borer (EAB) beetle from Asia could cost Ohioans millions of dollars as it annihilates ash trees across the state. After killing over 8-10 million trees in Michigan, the EAB has worked its way into 20 Ohio counties, 14 of which currently have quarantined areas.

The EAB can kill an ash tree within three to five years of infestation. The beetle’s larvae spend half the year developing under the tree’s bark, destroying the tree’s circulatory system and preventing it from transporting essential nutrients. From May to August, the adult beetles emerge from the bark, leaving D-shaped exit holes. The adults live for two to three weeks and begin laying eggs in new trees. Unfortunately, an EAB infestation is very difficult to detect in the first year and ash trees have no natural immunity to the EAB. This combination makes the pest hard to stop. The best defense is a quarantine on infected areas and eradication of infested sites.

Currently, there are 14 counties in Ohio where EAB infestations have resulted in quarantines in certain areas: Auglaize, Defiance, Delaware, Erie, Fulton, Hancock, Henry, Huron, Lorain, Lucas, Ottawa, Sandusky, Williams and Wood. The Ohio Department of Agriculture has quarantined these areas in an effort to stop the artificial spread of the beetles into other Ohio counties and states. Ash trees, limbs, branches, firewood, logs and nursery stock cannot leave quarantined areas under penalty of law. Individuals doing so face up to a $4,000 fine.

All told, Ohio has more than 3.8 billion ash trees that will either need to be protected from the beetle or removed after succumbing to the pest. Although Governor Taft requested $50 million to combat the EAB, Congress allotted only $10 million for the regional EAB program. Those funds will largely be devoted to early detection and containment rather than removal of dead and dying trees. This means that local governments and homeowners will be responsible for tree removal costs, which can run between $400 and $1,000 per tree.

Fearing that EAB could be on a scale similar to Dutch Elm disease, that overwhelmed local governments in the 1950s as they got stuck with dead and dying elm trees, Bricker & Eckler was encouraged to pursue the revamping of local government emergency borrowing authority to encompass invasive pests like the EAB by Ohio’s Chief Forester and officials at the Ohio Department of Agriculture. The Ohio Municipal League, the Ohio Township Association and the County Commissioners Association of Ohio supported the concept and worked with the firm on the language.

As a result, State Representative James M. Hoops (R-Napoleon), whose district is in the EAB quarantine area, introduced legislation that would permit local governments to borrow funds on an emergency basis for the removal of dead and dying ash trees. Passed as part of the technical corrections bill signed by the Governor on March 30, 2006, the legislation allows local governments to:

• Issue general obligation securities to defray expenses considered necessary to combat the outbreak or infestation of a pest, including removal or complete destruction of plants that are dead or dying from the pest.

• Use general funds to purchase or rent equipment and supplies designed to combat a pest for which a quarantined area is established and to hire necessary employees to operate such equipment.

• Make joint contracts with other counties, townships, municipal corporations, or any combination of subdivisions for the purchase or renting of such equipment, the purchase of such supplies, and for the hiring of such employees to conduct a joint effort to combat a pest.

• Obtain permission from land owners to enter their land, combat the pest or remove the dead plants, and charge the cost of the efforts to the land owner.

These provisions will become effective July 1, 2006.

The legislation will certainly be welcomed by the 20 counties in Ohio where the EAB has been identified. But, what can your local government do now to start combating the EAB? First, take an inventory of ash trees in your area. Remove any infected trees right away. Second, develop a strategy to pay for large scale removal of dead or dying ash trees. By planning now, local governments may be able to spread the cost across several years. For example, the City of Upper Arlington has already identified 700 ash trees that could be removed and replaced in the next 10 years. The City is also considering a plan that would provide it with greater power to remove dead ash trees from private property. Early planning coupled with the new ability to borrow emergency funds can help local governments make it through the EAB crisis.